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January 2020

Defendant fails to implement reliable procedures to control a known risk

SafeWork NSW v Grant (2017)


On 31 January 2014, Mr Grant, who ran an arborist service, inspected a tree with a tenant of the premises. During this inspection, Mr Grant recognised the tree was frail. It had been dead for at least 7 years, it stood 20 metres high and there were no structural roots to provide support. Mr Grant and the tenant discussed using a crane to remove the tree but deemed it unnecessary.

On 3 February 2014, Mr Grant engaged four other individuals to work with him. Their task was to remove the tree. On 3 February, a Mr Hall was cutting the tree with the help of a supporting rope. As he cut the tree, his colleagues pulled the rope to support him. The tree moved and started to fall. As the tree fell, it landed on some of the workers and caused injury to Mr Hall who was still attached to the tree.


Kearns DCJ stated the risks associated with the tree felling were foreseeable. He also found that the risks were in fact foreseen by the defendant, Mr Grant, after the tree inspection on 31 January. The Judge emphasised the tree was clearly showing signs of fragility and it was obviously dead. Even the defendant described the tree as dead. Kearns DCJ indicated that measures “were readily available” to avoid the risks involved. Well known mechanical devices such as a mobile crane could have avoided these injuries. The defendant, who was an individual, was personally fined $80,000.


The District Court was very explicit with its criticisms of the defendant’s procedure. While there were mitigating factors in sentencing such as the guilty plea and cooperation with prosecutors, the workers’ substantial injuries and the fact that the offence was committed without regard to public safety also aggravated the situation. Employers must take that note that failing to implement reliable procedures to control a known risk will result in a significant penalty.


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